Madras High Court
Akbar Ali vs Murugan on 20 July, 2017
Author: T.Ravindran
Bench: T.Ravindran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.07.2017 Date of Reserving the Order Date of Pronouncing the Order 17.07.2017 20.07.2017 CORAM THE HONOURABLE MR.JUSTICE T.RAVINDRAN C.R.P.(NPD) (MD) No.58 of 2006 Akbar Ali S/o.Kudumian Sahib Muthawalli, Lalamian Sadaya Pakiri Pallivasal No.5, Tenkasi Main Road Pettai, Tirunelveli ... Petitioner -vs- 1.Murugan 2.Ramaiah ... Respondents PRAYER: Civil Revision Petition is filed, under Article 227 of the Constitution of India, to set aside the Judgment and Decree passed in O.S.No.244 of 1998, on the file of the Wakf Tribunal (Principal Subordinate Judge), Tirunelveli, dated 29.09.2005. !For Petitioner : Mr.M.P.Senthil ^For Respondents : Ex parte :ORDER
Challenge in this civil revision petition is made by the plaintiff's Mosque to the Judgment and Decree, dated 29.09.2005, passed in O.S.No.244 of 1998, on the file of the Wakf Tribunal (Principal Subordinate Court), Tirunelveli.
2. The suit, in O.S.No.244 of 1998, has been laid by the revision petitioner's Mosque for the reliefs of declaration and permanent injunction and also by amending the plaint, has sought for the relief of possession of the suit property by removing the encroachments made in the suit property by the respondents.
3. In brief, according to the revision petitioner's case, the suit property belonged to the revision petitioner's Mosque and as per the proceedings of the Settlement Tahsildar, Kovilpatti, dated 26.06.1970, under the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act 30/63, the Patta for the suit property was granted in favour of the revision petitioner's Mosque and the revision petitioner's Mosque is in possession and enjoyment of the suit property and while so, pending suit, the respondents, without any authority, trespassed into the suit property and put up superstructures and hence, the superstructures are liable to be removed and the respondents have no right, title or interest over the suit property in any manner and hence, the revision petitioner's Mosque, according to it, has been necessitated to prefer the suit for appropriate reliefs.
4. The case of the respondents in brief as put forth in the written statement as well as in the additional written statement is that the revision petitioner's Mosque has no title to the suit property and the claim of the revision petitioner's Mosque that Patta had been issued in its favour by the Settlement Tahsildar, Kovilpatti, under the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act 30/63, is false. The suit property has never been in the possession and enjoyment of the revision petitioner's Mosque at any point of time and the proceedings of the Settlement Tahsildar, dated 26.06.1970, has been set aside and the revision petitioner's Mosque, without any right or title has instituted the suit and also not obtained any permission from the Wakf Board to institute the suit. It is false to state that the revision petitioner's Mosque has prescribed title to the suit property by adverse possession. They have put up superstructures in the suit property and as such, they are in possession and enjoyment of Door Nos.12, 12B and 12C located in the suit property. The suit property has not been properly described and it is false to state that pending suit, the respondents trespassed into the suit property and put up superstructures thereon. The revision petitioner's Mosque is not entitled to the reliefs of declaration and recovery of possession as prayed for. The Wakf Tribunal has no jurisdiction to entertain the suit and the revision petitioner's Mosque has no cause of action and hence, the suit is liable to be dismissed.
5. On the basis of the above pleadings, the following issues have been framed by the Lower Court for determination:
i. Whether the revision petitioner's Mosque has title to the suit property?
ii. Whether the suit property is in the possession and enjoyment of the revision petitioner's Mosque?
iii. Whether the revision petitioner's Mosque has prescribed title to the suit property by adverse possession?
iv. Whether the description of the suit property is correct?
v. Whether the suit is barred by res judicata? vi. Whether the suit is liable to be dismissed on account of the failure on
the part of the revision petitioner's Mosque in obtaining prior permission from the Wakf Board to institute the suit?
vii. Whether the suit is barred by limitation? viii. Whether the Court has no jurisdiction to entertain the suit? ix. Whether the Court fee paid by the revision petitioner's Mosque is correct?
x. Whether the revision petitioner's Mosque is entitled to obtain the reliefs sought for? and xi. To what relief the revision petitioner's Mosque is entitled to?
6. In support of the revision petitioner's case, P.W.1 has been examined and Exs.A1 to A7 have been marked and in support of the respondents' case, D.Ws.1 to 5 have been examined and Exs.B1 to B8 have been marked.
7. Considering the oral and documentary evidence put forth by the respective parties, the Court below was pleased to dismiss the suit. Aggrieved over the same, the present civil revision petition has been preferred.
8. The following points arise for determination in this civil revision petition:
i. Whether the suit property belonged to the revision petitioner's Mosque? ii. Whether the suit property is in the possession and enjoyment of the revision petitioner's Mosque?
iii. Whether the suit property is in the possession and enjoyment of the respondents as put forth by them?
iv. Whether the revision petitioner's Mosque is entitled to obtain the reliefs sought for? and v. To what relief the revision petitioner's Mosque is entitled to?
POINT NO.I:
9. The revision petitioner's Mosque, represented by its Muthavalli, has laid the suit seeking the reliefs of declaration and permanent injunction and also for recovery of possession. As far as the entitlement of the Muthavalli to represent the revision petitioner's Mosque, it is found that the revision petitioner's Mosque has produced the Appointment Order of Akbar Ali as Muthavalli marked as Ex.A2. Therefore, it is found and also as rightly determined by the Lower Court, the said Akbar Ali has been nominated as the Muthavalli and instituted the suit on behalf of the revision petitioner's Mosque.
10. The revision petitioner's Mosque claims title on the footing that the Patta for the suit property has been granted in favour of the revision petitioner's Mosque by the the Settlement Tahsildar, Kovipatti, vide proceedings dated 26.06.1970, under Section 11(2) of the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act 30/63. The said order has been marked as A1. A perusal of the same would go to show that seeking Patta before the concerned Authority in respect of various T.S.Numbers in Kandiaperi Village, Tirunelveli Taluk, including the suit property, it is found that the revision petitioner's Mosque represented by its Trustee and another had preferred the claim and it is found that after considering the materials placed, the Settlement Tahsildar, Kovilpatti, has held that the revision petitioner's Mosque represented by the claimants as Trustees is entitled to Ryotwari Patta in respect of the propertyies inclusive of the suit property except T.S.Nos.1980 and 2000, under Section 8(1) of the Act and also held that the revision petitioner's Mosque jointly with one Mohammed Sheriff / first claimant is entitled to Patta for T.S.Nos.1980 and 2000, under Section 13 of the Act and therefore, it is found that by virtue of the proceedings marked as Ex.A1, it is seen that the revision petitioner's Mosque has been granted Patta by the competent Authority in respect of the suit property and other properties.
11. However, the Lower Court is found to have been misled or the Lower Court has not properly appreciated the proceedings of the Settlement Tahsildar, Kovilpatti, marked as Ex.A1 and erred in holding that the revision petitioner's Mosque has been granted Patta only in respect of T.S.Nos.1980 and 2000 and not in respect of other lands involved in the proceedings, particularly the suit property. On the other hand, as seen above, the patta for the suit property and other properties had been granted only in favour of the revision petitioner's Mosque.
12. Further, to buttress the claim of the revision petitioner's Mosque, it is found that the revision petitioner's Mosque had also made contributions to the Wakf Board and the receipts with reference to the same have been marked as Ex.A3 series. The revision petitioner's Mosque has also marked Town Survey Field Register Extract as Ex.A4, wherein also the revision petitioner's Mosque has been shown to be the owner of the suit property. Further, from the Adangal marked as Ex.A5, it can be seen that it is only the revision petitioner's Mosque, who has been in possession and enjoyment of the suit property as such. Ex.P6 Proforma has been marked by the revision petitioner's Mosque as regards the properties to which it is entitled to and from the same, it could be seen that a specific reference has been made therein that it is only the revision petitioner's Mosque, who is the owner of the suit property and other properties as described therein and therefore, it could be seen that by marking Exs.A1, A3 to A6, the revision petitioner's Mosque has clearly established that the suit property absolutely belonged to it. In such view of the matter, it is found that the Lower Court has not properly appreciated the oral and documentary evidence projected by the revision petitioner's Mosque, which would clinchingly establish that it is only the revision petitioner's Mosque, who has title to the suit property.
13. Further, it is found that the Lower Court has misconstrued that the order passed by the Settlement Tahsildar, Kovilpatti, in his proceedings marked as Ex.A1 has been challenged before the Tribunal. In this connection, the Lower Court has placed reliance upon the order of the Tribunal, dated 29.11.1991 in appeal proceedings No.1 of 1987 marked as Ex.B1. However, a perusal of the same would go to show that the above said appeal has been preferred impugning the order of the Settlement Tahsildar, dated 20.09.1967. Whereas, it is found that Ex.A1 Proceedings have been passed by the Settlement Tahsildar by order, dated 26.06.1970. It is, therefore, found that the Lower Court has wrongly hold that Ex.B1 appeal is preferred against the order passed under the proceedings marked as Ex.A1. Further, it is found from Ex.B1 that in the above said appeal also it has been held that the same had been wrongly preferred as against the order of the Settlement Tahsildar, Kovilpatti, dated 20.09.1967. It has been held therein that as regards the order passed by the Settlement Tahsildar, Kovilpatti, dated 20.09.1967, an appeal had been already preferred by one Mohammed Sheriff and by way of the order passed in the said appeal, the matter had been remitted back to the file of the Settlement Tahsildar for further proceedings and accordingly, it is found that the Settlement Tahsildar, Kovilpatti, had passed the subsequent order, dated 26.06.1970, which had been marked as Ex.A1, whereas Ex.B1 Appeal is found to have been preferred as against the order, dated 20.09.1967, which has already come to be set aside by another appeal preferred by the said Mohammed Sheriff and on that ground also, it is found that the appeal proceedings marked as Ex.B1 have come to be dismissed. In such view of the matter, the endorsement said to have been made during the course of the above said appeal proceedings would not in any manner be useful to determine the right and ownership of the suit property in particular and therefore, the Court below has been carried away by the endorsement made during the course of the appeal proceedings as if, the revision petitioner's Mosque has given up its right in respect of the suit property. On the other hand, it is found that after the matter had been remitted back, the Settlement Tahsildar, by way of the proceedings marked as Ex.A1, has held that it is only the revision petitioner's Mosque, who is the owner of the suit property and it is also found that as referred to above, the revision petitioner's Mosque having title of the suit property is found to be in possession and enjoyment of the suit property and the same could be evidenced from the Adangal Extract and also the Proforma marked on the side of the revision petitioner's Mosque.
14. Contrary to the claim of the title to the suit property by the revision petitioner's Mosque, as regards the defence put forth by the respondents, it is found that no valid claim of title has been made by the respondents in respect of the suit property in their written statement. All that they would state that they had been enjoying the suit property by putting up superstructures thereon and hence, it is only the respondents, who have title to the suit property. However, as rightly put forth by the learned counsel for the revision petitioner's Mosque, the respondents have not established as to under what right they had to put up superstructures in the suit property and claiming title to the same. In this connection, the documents marked on behalf of the respondents would also not in any manner advance their case. Exs.B3 to B5 stated to be house tax receipts and Electricity Board receipts in respect of the superstructures put up on the suit property by the respondents, however, there is no indication or reference therein as to the said receipts pertain to the superstructures put up in the suit property. There is no reference about the suit survey number etc., for correlating the above said documents with the suit property. Therefore, the aforesaid documents would not in any manner useful to sustain the respondent's version. Similarly, Ex.B4 series are marked as if the respondents have been paying land tax in respect of the suit property. However, as rightly held by the Lower Court also in the absence of any indication that the said receipts are pertaining to the suit property, the above documents also would not in any manner be useful to support the respondents' case. Ex.B6 series are the Photographs, which would not in any manner be helpful to uphold the title of the respondents over the suit property. Ex.B7 is the Field Map and by the same, it cannot be held that the respondents have title to the suit property as claimed by them. Further, Ex.B8 being the property tax demand register the same by itself would not be helpful to support the respondents' case that they have valid title to the suit property or that the superstructures put up thereon had been lawfully put up by them as the full owners thereof. Therefore, Exs.B3 to B9 marked on the respondents's side finding to be not correlating with the suit property and not establishing the tile of the respondents in respect of the suit property, it is found that the respondents have miserably failed to establish that they have valid title or possession of the suit property.
15. It is the case of the revision petitioner's Mosque that pending suit, the respondents, without authority, had trespassed into the suit property and put up superstructures thereon and hence, the revision petitioner's Mosque has been constrained to amend the plaint seeking for the relief of recovery of possession. Inasmuch as the respondents have failed to establish any title to the suit property and on the other hand, in the light of the above discussions, it is found that it is only the revision petitioner's Mosque, who has title to the suit property, as rightly contended by the revision petitioner's Mosque, it is seen that it is entitled to obtain the relief of declaration that it has title to the suit property. Accordingly, I hold that the revision petitioner's Mosque is the owner of the suit property and accordingly, Point No.I is answered in favour of the revision petitioner's Mosque.
POINT NOS.II TO IV:
16. Under Point No.I, I have held that the revision petitioner's Mosque is the owner of the suit property. Further, as seen from the above discussions made under Point No.I, the respondents have not placed any acceptable material before the Court below that they have valid title to the suit property or that their possession in the suit property is legal.
17. Originally, the suit has been laid by the revision petitioner's Mosque only for the reliefs of declaration and permanent injunction. Subsequently, on the respondents' encroaching into the suit property, pendente lite it is found that the revision petitioner's Mosque has amended the plaint and also sought for the relief of recovery of possession. As seen above, the respondents have no title to the suit property and hence, their claim of putting up superstructures in the suit property and enjoying the same cannot be accepted in any manner. Therefore, it is found that as put forth by the revision petitioner's Mosque, the respondents have trespassed into the suit property pendente lite and put up superstructures thereon and accordingly, it is found that the revision petitioner's Mosque having title to the suit property is entitled to remove the superstructures put up by the respondents on the suit property and recover possession of the same.
18. In the light of the above discussions, I hold that the respondents have trespassed into the suit property pendente lite and put up superstructures thereon and therefore, I hold that the revision petitioner's Mosque is entitled to seek for the removal of the unlawful superstructures put up by the respondents in the suit property and recovery of possession of the same from the respondents.
19. In support of the revision petitioner's Mosque contentions, the decisions reported in 2016 (2) MWN (Civil) 768 [Zarif Ahmad and others vs. Farooq] and 2016 (2) MWN (Civil) 268 [Marudhayee and others vs. Kaliammal and others] are relied upon. The principles of law enunciated in the above said decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand.
20. In the light of the above discussions, I hold that the respondents have no title to the suit property and also they have trespassed into the property pendente lite and I, therefore, hold that the revision petitioner's Mosque is entitled to obtain the reliefs of declaration and recovery of possession as prayed for and accordingly, Point Nos.II, III and IV are answered in favour of the revision petitioner's Mosque.
POINT NO.V:
21. In the result, the Judgment and Decree, dated 29.09.2005, passed in O.S.No.244 of 1998, on the file of the Wakf Tribunal (Principal Subordinate Court), Tirunelveli, are set aside. The revision petitioner's Mosque is entitled to obtain the reliefs of declaration, recovery of possession as prayed for and accordingly, the suit in O.S.No.244 of 1998 is decreed in favour of the revision petitioner's Mosque with costs. The relief of permanent injunction sought for by the revision petitioner's Mosque is negatived. Consequently, the civil revision petition is allowed with costs.
To:
The Principal Subordinate Judge, Wakf Tribunal, Tirunelveli..